1
Sunol v Collier and anor. (No 2) [2012] NSWCA 44
Category: Principal judgment
Parties: Garry Burns (Applicant)
John Sunol (Respondent)
Representation: Solictors:
Mr Burns (Applicant in person)
Mr Sunol (Respondent in person)
File Number(s): 1410195, 1410218, 1410717
[2]
Reasons for decision
John Sunol, the respondent in these proceedings, made an application to the NSW Civil and Administrative Tribunal (NCAT) for orders under s 102 of the Anti-Discrimination Act 1977 (NSW) (the Act), to dismiss three complaints made by Garry Burns to the President of the Anti-Discrimination Board (the Complaints). In those complaints Mr Burns alleged that by publishing material on the internet Mr Sunol vilified homosexual persons and also victimised him, in contravention of the Act. The Tribunal (constituted by Principal Member Britton), declined to make the orders sought by Mr Sunol (Burns v Sunol [2015] NSWCATAD 178 ("Burns 2015")).
The material the subject of the Complaints (the offending material) was published either on a website operated by Mr Sunol or on websites operated by third parties (third party content).
On 4 September 2015 Principal Member Britton directed the parties to make written submissions addressing whether, in relation to each complaint, the elements of s 49ZT (unlawful homosexual vilification) and/or s 50 of the Act (victimisation) were satisfied. In answer to that direction Mr Burns filed written submissions on 10 September 2015. No submissions were received from Mr Sunol. A hearing was subsequently conducted to determine the Complaints.
In relation to the allegations of homosexual vilification the primary issues to be determined are:
1. Whether the communication of the offending content was a "public act" of Mr Sunol.
2. If so, whether the offending content had the capacity to incite hatred towards, or serious contempt for, homosexual person(s).
3. If so, whether the requisite emotion was incited "on the ground of" the homosexuality of the person(s).
4. If yes, whether, as Mr Sunol contends, one of the exceptions listed in s 49ZT applies.
In relation to the allegation of victimisation the primary issues are:
1. Whether Mr Sunol subjected Mr Burns to "a detriment"
2. If so, whether it was "on the grounds" that Mr Burns had alleged that Mr Sunol had vilified homosexuals and/or brought proceedings under the Act.
In these reasons we adopt the description of the Complaints used in Burns 2015: Complaint 1: NCAT no. 141095; Complaint 2: NCAT no. 1410218; Complaint 3: 1410717.
For the reasons discussed below we find each Complaint to be substantiated in part.
[3]
Can Mr Burns make a complaint of vilification?
In submissions made in support of the dismissal application, it was contended for Mr Sunol that, by the operation of s 88 of the Act, it was not open to Mr Burns to make a complaint of homosexual vilification because there was "no evidence" that he "has the characteristic [being homosexual] that was the ground for the conduct that constitutes the alleged contravention".
At hearing Mr Sunol advised that he no longer disputes Mr Burns' claim of being homosexual.
[4]
Statutory framework: homosexual vilification
Section 49ZT of the Act makes homosexual vilification unlawful:
49ZT Homosexual vilification unlawful
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
(2) Nothing in this section renders unlawful:
(a) a fair report of a public act referred to in subsection (1), or
(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or
(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
The Act defines "public act" to mean:
"public act" includes:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and
(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and
(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
Section 49Z states:
… A reference in this Part to a person's homosexuality includes a reference to the person's being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.
[5]
Complaint 1: 1410195
In a complaint lodged with the President on 7 March 2014, Mr Burns asserted that material posted on Mr Sunol's website between 5 March and 7 March 2014 amounted to "homosexual vilification and serious homosexual vilification".
Mr Burns claims that he visited Mr Sunol's website on 5 March 2014 and downloaded the following content:
alternative text version - downloaded content 5 Mar 2014 (36.9 KB, rtf)
In addition, Mr Burns claims that when he clicked on the link appearing on that page it opened to the website of "Right Wing America", (RWA website). He claims he downloaded 27 pages of material from that website, which he forwarded to the President (see report forwarded by the President of the Anti-Discrimination Board (the President) to the Tribunal under s 94A(2) of the Act (the President's report)).
[6]
Scope of complaint
In his initiating complaint, Mr Burns asserted that "all of the material" downloaded from the RWA website vilified homosexuals. In written submissions dated 4 September 2015, Mr Burns narrowed the scope of his complaint to two of the 17 passages listed in the Summary of Complaint contained in the President's report.
Because some people may find the two passages offensive, we have decided not to reproduce them in full in these Reasons.
The first of the two passages is said to have been posted by "Sgt Rock" and is identified in the President's report as Statement 1 (Statement 1). The clear imputation conveyed by that statement is that homosexual men are child molesters who have gone to "all ends to push their vile message on everyone including children". It goes on to pronounce "we" will take action to stop "this sh**".
The second statement identified as Statement 3 in the President's report, is said to have been posted by "John J" (Statement 3). In that statement "John J" wrote that when he opened a "faggot on boy link" his site crashed and these "queerbulous bastards" need to be physically attacked.
[7]
Is the offending communication a public act of Mr Sunol?
There is no argument that the publication of material on the internet, which as in this case is not password protected, is "a form of communication to the public" and thus a "public act" as defined by s 49ZS(a). Nor is it disputed that the publication of Statements 1 and 3 on the RWA website is a "public act". The issue in dispute is whether it is Mr Sunol's public act.
In Burns v Sunol [2016] NSWCATAD 16 (Burns 2016), the Tribunal (differently constituted) in addressing a similar factual situation involving the same parties identified at [33] the "real issue [as being] whether [Mr Sunol's] actions in putting the offending link and the surrounding words on his website, is sufficient to make him relevantly responsible for the communication of the offending material". Adopting the approach taken in Burns v Sunol [2012] NSWADT 246 (Burns 2012), the Tribunal wrote at [34] that "the determination of this issue requires consideration of the context in which the offending link appears, including any surrounding words and images".
Mr Sunol claims not to be the operator of the RWA website, the author of Statements 1 and 3 (the offending statements), or to place those statements on that website. Mr Burns acknowledges there is no evidence to contradict those claims but contends nonetheless that the communication of the offending statements was the public act of Mr Sunol because:
The surrounding content makes plain that Mr Sunol was expressly inviting users of his website to click on those links and view the material on the RWA website
Mr Sunol was expressly endorsing the offending passages by posting the statement, "Go into these links and you will see what I believe to be correct as I back and follow this person, Luke McKee over these statements".
In these proceedings Mr Sunol conceded that he placed the link and the surrounding material set out at [14] of these Reasons on the website. He also stated that he did not agree with all of the material on the RWA website and conceded some was "a bit extreme". He said that he had pasted the material on his website from material supplied by Luke McKee. He said he agreed with a lot of what Mr McKee had to say, but not the "dirty bits".
A number of conflicting accounts were given about what Mr Sunol knew of the content on the RWA website when he placed the subject link and the accompanying commentary on his website. At the hearing, he conceded he had a general understanding but claimed he took down the subject link once he fully appreciated the content of the offending statements. He said he could not remember when this happened but thought it was probably in about September 2014. In a letter dated 19 March 2014 addressed to the President, he wrote that he had neither read nor looked at the material and the first time he did so was when he received notice of Complaint 1. Mr Sunol was first notified of Complaint 1 on 13 March 2014.
The offending content was able to be accessed in a number of ways: through the subject link on Mr Sunol's website and directly via the RWA website. It may be that other websites also contained links to the RWA website. That the offending statements were communicated to the public in a number of ways of itself does not exculpate Mr Sunol.
Read together with the statement, "Go into these links and you will see what I believe to be correct as I back and follow this person, Luke McKee over these statements", we find that the material appearing on Mr Sunol's website constituted an express invitation to users to click on the offending link and view the offending passages. We find Mr Sunol was responsible, in the relevant sense, for the "public act" of communicating the offending statements to the public.
[8]
Did the offending material have the capacity to incite?
In Burns 2016, the Tribunal (differently constituted) noted at [9] that the vilification provisions of the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan) and summarised at [9] the following principles:
(a) an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53])
(b) "incite" in s 49ZT means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (Sunol at [41]; Margan at [11])
(c) for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41]; Margan at [12])
(d) it is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons; it must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41])
(e) the assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61])
(f) in making that assessment the particular class to whom the act is directed, the audience or likely audience, must be identified and considered (Sunol at [34]; [61]; Jones at [62], [63]).
NCAT and one of its predecessor tribunals, the Administrative Decisions Tribunal (ADT) has consistently held that the words "hatred" and "serious contempt" in the vilification provisions of the Act are to be given their ordinary meaning and has adopted the following definitions:
'hatred' means 'intense dislike; detestation' (Macquarie), 'a feeling of hostility or strong aversion towards a person or thing; active and violent dislike' (Oxford).
'serious' means 'important, grave' (Oxford); 'weighty, important' (Macquarie);
'contempt' means 'the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account'(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie).
See, for example, Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [1995] EOC 92-701 at [40]; Burns 2012 at [112].
Adopting these principles, the question posed by s 49ZT of the Act is whether as claimed by Mr Burns the offending statements had the capacity to incite - to rouse, to stimulate, to urge, to spur on, to stir up or to animate - hatred towards, serious contempt for, homosexual(s) in the ordinary member of the group to whom the material was directed, that is viewers of his blog, on the grounds of their homosexuality. In answering that question we must first identify the relevant audience and then consider whether each statement is likely to have the capacity to incite towards, hatred or contempt for the notional ordinary (or ordinary reasonable member) of that audience.
[9]
Identification of the audience
The relevant audience are internet users to whom the offending statements were directed. Apart from Mr Burns, we have no evidence about the identity of the persons who viewed the offending statements via Mr Sunol's website.
Mr Sunol asserts that many people follow his blogs. He claims to know this because he receives numerous comments about material posted on his blog through his Twitter account. He claims that some of his "followers" share his views but many are "politicians, academics, media and business people" who are just interested in the issues. He also claims to be followed by "a bunch of trolls who say they know Gary [Burns]".
Given the dearth of evidence it is not an easy task to identify the relevant audience. While possible that no one apart from Mr Burns visited Mr Sunol's website or clicked on the subject link and read the offending passages, we think consistent with Mr Sunol's claims that some people visited his website and through it accessed the RWA website.
As discussed in Burns 2016 at [39] - [41] it is likely that the people who accessed the offending statements via Mr Sunol's website were not a homogenous group and probably held a diversity of views about homosexual men, ranging from favourable to unfavourable.
[10]
Ordinary or ordinary reasonable member of the relevant audience?
In Burns 2016 at [42]-[45], the Tribunal examined whether the assessment of the capacity of the impugned act to incite is to be made by reference to the "ordinary", "reasonable" or "ordinary reasonable" member of the relevant audience. We adopt the approach taken by Bathurst CJ in Sunol at [34] and will measure the capacity of the offending statements to incite by reference to their effect on the notional "ordinary member" of the relevant group to whom the act is directed, namely users of Mr Sunol's website.
[11]
Statement 1
The unambiguous imputation conveyed by Statement 1 is that homosexual men are paedophiles who actively promote their "vile message".
Whether an impugned public act has the capacity to incite one or more of the requisite emotions requires an objective evaluation and consideration of the act itself, the context in which it occurred, the surrounding circumstances, the language used, together with the identification of the relevant audience and any relevant characteristics or features of that audience. In making that evaluation, a decision-maker must guard against consciously or otherwise allowing their own reaction to the public act to influence their evaluation of its capacity of the act to incite one of the relevant reactions in the ordinary member of the group. It goes without saying that this task does not lend itself to empirical evaluation and will inevitably be impressionistic. There will be cases because of factors such as the persuasive nature of the language used, the method of communication and/or a particular characteristic of the members of the group which may predispose them to incitement, where there will be little doubt that the act had the capacity to evoke one or more of the relevant reactions in the ordinary member of the target group. Conversely, at the other end of the scale there will be public acts where there will be little room for doubt that it did not have the capacity to evoke those emotions. However, between these two extremes will invariably lie public acts where reasonable minds will differ on whether, objectively assessed, the act has the capacity to incite.
As the Tribunal commented in Burns 2016 at [47], in Western society paedophilia is unlawful and attracts strong moral condemnation. It is difficult to imagine a more damaging slur or insult to level at an individual or group of persons. Statement 1 does more than merely express hatred and serious contempt towards homosexual men; in our opinion it also urges the reader to adopt those feelings.
As discussed, the relevant audience to which this message was directed is not a homogenous group. It is unlikely that the statement had the capacity to incite hatred towards or serious contempt for homosexual men among members of the group who, like Mr Burns, hold positive views about homosexual men. Nonetheless, on the balance of probabilities, we find the statement had the capacity to incite hatred of, or serious contempt towards, homosexual men in the ordinary members of the group.
[12]
Statement 3
The message conveyed by Statement 3 is that after viewing a link featuring male homosexual sex "John J" reacted with disgust - "I couldn't stand anymore" - and felt propelled to violently assault these "querulous bastards".
The statement plainly conveys the writer's contempt and disgust for male homosexuals, however we have concluded that it lacks the capacity to incite those emotions in the ordinary member of the group. The statement is in effect a rant and is neither well written, cogent, nor persuasive. In contrast to Statement 1 it does not convey the serious imputation that male homosexuals are, or have a tendency to sexually abuse children. While it uses derisory and insulting terms to describe male homosexuals and homosexual sex, we are not persuaded that it is capable of inciting the requisite ill-feeling in the ordinary member of the group.
Not being satisfied that this element of s 49ZT(1) is established, this part of Complaint 1 must be dismissed.
[13]
Did Statement 1 have the capacity to incite "on the ground of" homosexuality?
We must decide whether at least one of the "real", "genuine" or "true" reasons for Statement 1 having the capacity to incite hatred towards, or serious contempt for, homosexual men, was their sexuality (Jones at [98];). The "target" of each offending statement was unmistakably homosexual men, apparently in general. There is nothing to suggest from the language used or the context in which Statement 1 appears that some other feature or characteristic of this group was likely to have been a contributing factor to the incitement. We find Statement 1 had the capacity to incite each of the relevant emotions towards homosexual men on the grounds of their homosexuality.
[14]
Conclusion
Statement 1 satisfies each element of s 49ZT(1) of the Act. The complaint in relation to Statement 3 is dismissed.
[15]
Complaint 2: 1410218
In this complaint lodged with the President on 17 March 2014, Mr Burns alleged that the following material which appeared on Mr Sunol's website on 14 March 2014 vilifies male homosexuals:
That will make * ** going crazy. Proof a gay man is 3 times more likely to
rape children! My dad explains it in simple english.
Embed both of the you tube videos on those pages like i showed you
What he going to do? Jail you for having you tube videos from the ABC, with links to world media reports? ** ** him
The material claimed by Mr Burns to fall within s 49ZT(1) is the statement "Gay men are three times more likely to rape children".
[16]
Did the offending material have the capacity to incite hatred towards, or serious contempt of homosexual men?
The message conveyed by the statement is unambiguous: "Gay men are three times more likely to rape children". As stated above in our opinion it is difficult to imagine a more damaging slur or insult that to accuse person or group of being a paedophile.
We find the composition of the relevant audience to whom the message was directed (readers of Mr Sunol's website) to be the same as that identified in relation to Complaint 1. For the reasons given above we think it more probable than not that the statement had the capacity to incite each of those emotions in the "ordinary member" of the group. That conclusion is bolstered by the use of the reference to statistics - "three times more likely" - which tends to imply that there is some factual basis for the claim and it was based on some statistical evidence.
[17]
Did the offending statement have the capacity to incite "on the ground of" homosexuality?
The "target" of the offending statement is expressly stated to be "gay men". There is nothing to suggest from the language used in the statement or the context in which it appears that some other feature or characteristic of this group was a contributing factor to the incitement. We find the statement had the capacity to incite each of the relevant emotions towards homosexual men on the ground of homosexuality of the members of that group.
[18]
Conclusion
We find each element of s 49ZT(1) of the Act to be satisfied.
[19]
Complaint 3: 1410717
In this complaint lodged with the President on 8 September 2014, Mr Burns claimed that material appearing on Mr Sunol's website on 5 September 2015 constitutes both homosexual vilification and victimisation. With respect to the material said to constitute homosexual vilification, Mr Burns points to statements such as, "Stop Gary Burns criminalising dissent of 'Gay Dads' Baby Rape". The nub of the allegation in respect of homosexual vilification is that the offending material is said to convey the message that homosexual men in general, and Mr Burns in particular, are paedophiles.
Mr Burns attached to this complaint eight pages of material which cover a range of topics including "the Gay and Lesbian Lobby" and actions he is said to have taken in response to alleged homosexual vilification.
At the request of the Tribunal, at hearing Mr Burns particularised the content he contends falls within s 49ZT(1) of the Act:
1. The following passage posted on Mr Sunol's website apparently on 5 September 2014 (Passage 1):
alternative text version - Passage 1 (36.7 KB, rtf)
1. The following passage posted on a third party website, claimed by Mr Burns to be able to be opened through a link appearing on Mr Sunol's website, immediately above Passage 1:
(Described by Mr Burns in the complaint as "Attachment B", see President's report page 11)
alternative text version - Attachment B (35.6 KB, rtf)
1. The following passage posted on a third party website, claimed by Mr Burns to able to be opened by a link appearing on Mr Sunol's website immediately below Passage 1:
(Described by Mr Burns in the complaint as "Attachment A", see President's report, page 12)
alternative text version - Attachment A (33.2 KB, rtf)
For convenience we will refer to the above passages as Passages 1, 2 and 3, respectively, and collectively as "the offending passages"
[20]
Are the offending passages public acts of Mr Sunol?
Mr Sunol submits that he was not relevantly responsible for any of the offending passages. While he admits placing Passage 1 on his website he submits he is not responsible for its communication to the public because it was written by Luke McKee and, in addition, the surrounding "disclaimer" - "Material I was asked to publish for a Luke McKee …" - made clear he was publishing the material on behalf of Mr McKee. With respect to Passages 2 and 3, he claims he did not write those passages and not did he operate or have any involvement with the websites on which they appeared.
There can be no argument that Passage 1 was a form of communication to the public for which Mr Sunol was relevantly responsible. Whether he wrote the material is not to the point. Nor is the use of the purported disclaimer. By his actions, the material was published and communicated to the public.
The available material does not support a finding that Passages 2 and 3 were written by, or posted on a website operated by, Mr Sunol. Nonetheless, applying the reasoning at [20] - [26] of these Reasons, we find that the communication of Passages 2 and 3 was a form of communication to the public for which Mr Sunol was relevantly responsible.
[21]
Did Passage 1 have the capacity to incite hatred towards, or serious contempt of Mr Burns?
Mr Burns asserts that that the reference in Passage 1 to a "militant gay paedophile rights activist" was intended to be a reference to him and that would be apparent to any user of Mr Sunol's website. He argues that the use of the term "paedophile rights activist" had the capacity to incite hatred and serious contempt of him in ordinary users of Mr Sunol's website.
Mr Burns hypothesis rests on the assumption that the reader had knowledge of the history between Mr Burns and Geoff McKee [apparently Luke McKee's father] and Mr Burns alleged "persecution" of Mr McKee.
We accept that the reference to a "militant gay paedophile rights activist" in our opinion was intended by the author to be a reference to Mr Burns. Whether it is likely that that would been apparent to the ordinary user of Mr Sunol's website cannot be assessed by reference to Mr Burns' (or our) knowledge of the history between the parties, but rather by reference to the knowledge possessed by the ordinary member of the group. The available evidence does not support a finding that users of Mr Sunol's website had knowledge of the history between Mr Burns and the McKees or that those matters had previously been ventilated on Mr Sunol's website. While likely some members were aware that history, on the available evidence we are not satisfied that that knowledge could be imputed to the ordinary user of Mr Sunol's website.
[22]
Did Passage 2 have the capacity to incite hatred towards, or serious contempt of Mr Burns?
Mr Burns contends that Passage 2 had the capacity to incite hatred towards and serious contempt of him because it conveyed the imputation that he is a paedophile on account of being a homosexual male.
Passage 2 conveys a number of messages, which include:
That Mr Burns is a "gay paedophile rights activist".
That Mr Burns actively campaigns against self-described "campaign leader" Luke McKee and others opposed to "gay baby rape".
That Luke McKee's father is being "prosecuted" by Mr Burns.
That the Department of Foreign Affairs and Trade is involved in facilitating the sexual abuse of children and helping "150 gay dads".
The passage portrays Mr Burns in an unfavourable light. However we are not convinced that the meaning conveyed to the ordinary member of the relevant class was, as Mr Burns, contends that he was "a gay paedophile" as opposed to "a gay paedophile rights activist".
But in any event, even if accepted that this passage had the capacity to incite hatred or contempt towards Mr Burns, we are not satisfied that one of the "real", "genuine" or "true" reasons for it to have the capacity to incite those emotions was Mr Burns' sexuality. In our opinion the predominant factor contributing to any incitement is likely to have been Mr Burns' role in seeking to prevent Mr McKee's "followers" (if indeed there are any) "speaking out". We think it unlikely that Mr Burns' sexuality would have contributed to that incitement in any real or operative way. In reaching this conclusion we note the inherent difficulty of identifying the factor or factor(s) that causes a person to experience the emotion of hatred and/or contempt for another person or persons.
[23]
Did Passage 3 have the capacity to incite hatred towards, or serious contempt of male homosexuals?
Passage 3 repeats the assertion made in the material the subject of Complaint 2: "Gay men are three times more likely to rape children". It goes on to suggest none too subtly that gay marriage is a ruse designed to facilitate the marriage of "two [gay] paedophiles" and their adoption of a child "for the purpose of later sharing with their kind on a 'boy lover' network".
The language used in Passage 3 our opinion is even more powerful and persuasive than that used in Complaint 2. We are satisfied that it has the capacity to incite hatred and serious contempt for male homosexuals on the ground of their sexuality.
[24]
Conclusion
Passage 3 satisfies each element of s 49ZT(1) of the Act. The complaint in relation to Passage 1 and 3 is dismissed.
[25]
Does the exception in s 49ZT(2)(c) apply?
Section 49ZT(2)(c) provides:
(2) Nothing in this section renders unlawful:
…
(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
In submissions filed in support of the dismissal application, it was asserted for Mr Sunol that the above exception applied in respect of each complaint. At hearing he stated he only relied on the exception in relation to Complaint 2 and was "dead against" the material the subject of Complaints 1 and 3.
Mr Sunol asserts that the offending statement the subject of Complaint 2 - "Gay men are three times more likely to rape children - was published for academic purposes to encourage debate about matters of public importance. He stated he has "nothing against homosexuals" but agrees with the offending statement "in a sort of academic way". He claimed the statement was based on what he had been told by Geoff McKee who has researched the area and considered "academic material from one of the universities". He stated he had read "bits of" but not all of the material relied upon by Geoff McKee.
Mr Sunol bears the onus of establishing that this exception applies (s 104 of the Act). He has produced no evidence of any academic articles which support the proposition that "Gay men are three times more likely to rape children". By his own admission he has made no independent enquiries about the truth or otherwise of the claims made by Mr McKee. At its highest his evidence is that he glanced at some literature he was provided by Mr McKee.
Even if accepted that Mr Sunol published the offending statement to encourage debate about matters of public interest, he has failed to discharge the onus of establishing that he acted "reasonably and in good faith". Accordingly it is not open to him to rely on s 49ZT(2)(c) of the Act.
[26]
Allegation of victimisation
In Complaints 2 and 3 Mr Burns also alleged that he was victimised by Mr Sunol in contravention of 50 of the Act, which provides:
50 Victimisation
(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
Mr Burns must establish:
1. That by the publication of the challenged material Mr Sunol subjected him to a detriment.
2. That Mr Sunol did so "on the ground" that he had done one of the things listed in par. (a),(b), (c) and/or (d) of s 50(1).
[27]
Complaint 2
Mr Burns contends that he was victimised by Mr Sunol by the publication of the following statements on his website:
That will make * ** going crazy. Proof a gay man is 3 times more likely to
rape children! My dad explains it in simple english.
…
I left out a name as i have court order not to put his name in the email I ma publishing and i do not want to breach order
This material is very serious and I think that all should watch this video I put online
[28]
Was Mr Burns subjected to a detriment?
The word "detriment" in the context of s 50(1) of the Act means "loss, damage or injury" that is "real and not trivial" (see Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,146). Whether something constitutes a detriment requires an objective not subjective evaluation to be undertaken (Sivananthan v Commissioner of Police, NSW Police Service at [41]).
Apart from a one line entry in his statement of claim - On reading each of the above statements the Applicant was shocked, humiliated and angry - Mr Burns provided no further particulars or any supporting evidence of the alleged detriment suffered. From the available material it cannot be discerned whether Mr Burns' alleged reaction was because he believed the offending statements vilified homosexual men or because he was being targeted by Mr Sunol for his actions in making complaints to the President. While possible, we think it unlikely having read and considered numerous comments made by Mr Sunol of the type about which he now complains, that Mr Burns would have reacted with feelings of shock, humiliation and anger. Mr Burns bears the onus of proof and has failed to discharge that onus.
We understand Mr Burns to also claim that by the publication of the offending material he suffered damage to his reputation because it conveyed the suggestion that he was a person who raped children. Elaborating on that argument he contends it would have been evident to the reader that he was the subject of the offending comments or the person referred to as "***". In support he points to the following entry on Mr Sunol's website which appears about 20 lines on from the passages complained about:
Labels: Gary Burns, John Christopher Sunol, John Sunol, Luke McKee.
We reject that argument for these reasons. First, we do not accept the proposition that it would have been evident to users of Mr Sunol's website that Mr Burns would have been the person referred to in the statements: "That will make * ** going crazy" and those referring to court orders and the like. While we accept that Mr Sunol was referring to Mr Burns, that connection could only be drawn by persons who had knowledge of the history between the parties. It is not apparent how the mention of Mr Burns' name under the heading "label" would lead the reader to make that connection. Second, even if assumed that the reader would have made that connection, we are not persuaded that the statement carried the imputation that Mr Burns had a propensity to sexually abuse/rape children. Rather the imputation carried is that the statement would have infuriated Mr Burns.
Not being satisfied that Mr Burns was subjected to a detriment this part of Complaint 2 must be dismissed.
[29]
Complaint 3
The publication complained of is the following passage said to have appeared on Mr Sunol's website on 6 September 2014.
(The handwritten notation was made by Mr Burns)
alternative text version - Passage 6 Sep 2014 (36.6 KB, rtf)
There is no evidence to refute claim Mr Burns' claims that when he opened the link appearing on the page it took him to the decision Burns v Sunol (No2) [2014] NSWCATAD 126 on CASELAW, a NSW Government website which publishes decisions of NSW Courts and Tribunals.
[30]
Was Mr Burns subjected to a detriment?
The above content describes Mr Burns as being corrupt, accuses him of abusing the courts, being a thief and abusing the law. In contrast to Complaint 2 there can be no doubt that Mr Burns was the target of these comments.
We have no evidence about Mr Burns' reputation as perceived by others and therefore make no finding as to whether in fact Mr Burns was damaged by the publication of those comments.
Mr Burns' claim of being "shocked, humiliated and angry" on reading the above material is not implausible. The allegations, in particular the allegation of corrupt conduct, are of a serious nature. While the evidence on which Mr Burns relies is not especially compelling and unsupported, nonetheless we are satisfied on the balance of probabilities that it caused Mr Burns to experience feelings of humiliation and anger. We find by publishing the offending statement Mr Sunol subjected Mr Burns to a detriment that was real and not trivial.
[31]
On the grounds of
Mr Burns must also establish that Mr Sunol published the offending material "on the ground" that he had done one of the things listed in s 50(1) of the Act. The phrase "on the ground of" in s 50(1) of the Act has been interpreted to mean one of the 'real', 'genuine' or 'true' reasons (Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]).
Mr Burns contends that the trigger for Mr Sunol's actions in subjecting him to the detriment of publishing the material about which he complains was because he alleged that Mr Sunol unlawfully vilified homosexuals in contravention of the Act (s 50(1)(c)) and also brought proceedings under the Act (s 50(1)(a)).
Mr Sunol states that these proceedings are the eighth public hearing he has had to "endure" as a result of "the serial complainant's [Mr Burns] obsessive, vexatious and frivolous complaints against my blogging about Agenda 21 and related issues". He contends that his ideas are based on "my religious, academic, political, cultural and historical evidentiary beliefs". He claims that Mr Burns is unfairly abusing the "court system" to silence people who do not share his views.
We find that Mr Sunol published the offending material for a number of reasons, including that he:
feels aggrieved at being "singled out" and "unfairly targeted" by Mr Burns
believes that Mr Burns' actions are an affront to free speech
considers given the volume of complaints that Mr Burns is not genuine, is "abusing the system" and is in effect a queralent
While likely that these and other factors contributed to Mr Sunol's decision to publish the offending material, we find that nonetheless at least one of the real reasons he did so is because Mr Burns has made allegations that he has contravened the Act and brought proceedings against him.
[32]
Does s 50(2) apply?
While not raised by Mr Sunol at the hearing we note that in submissions filed on his behalf in relation to the dismissal application he foreshadowed his intention to rely on s 50(2) of the Act. The defence contained in s 50(2) only applies if the allegation of a contravention of the Act by the person victimised was both false and not made in good faith. Mr Sunol has not adduced any evidence to support a finding that the allegations made by Mr Burns are "false". Absent such evidence s 50(2) cannot be relied upon.
It is unnecessary to consider whether the allegations made by Mr Burns were not made in good faith.
[33]
Conclusion
The complaint of victimisation in relation to Complaint 2 is dismissed. The complaint of victimisation in relation to Complaint 3 is substantiated.
[34]
Relief sought
Mr Burns seeks orders that Mr Sunol issue an apology and be restrained from "any future acts of homosexual vilification".
Section 108 of the Act states:
(1) In proceedings relating to a complaint, the Tribunal may:
(a) dismiss the complaint in whole or in part, or
(b) find the complaint substantiated in whole or in part.
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,
(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),
(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,
(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,
(g) decline to take any further action in the matter.
[35]
Restraining order
Having found the Complaint in part, we may make an order enjoining Mr Sunol from continuing or repeating any conduct rendered unlawful by this Act (s 108(2)(b) of the Act).
In Burns v Sunol [2015] NSWCATAD 131 the Tribunal (differently constituted) made the following orders:
(1) In this order, "the material" means:
(a) Garry ** ** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil. I have work to do to help you, protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker. I will not be raped to death in jail while he watches as he says in his threats to me.
(b) Rape little boys, this is same sex marriage. If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage. This is the end results of same sex marriage. Sit back and enjoy yourself whilst this goes on.
(c) Older homosexuals call their underage love interests or targets 'chickens' or 'chicks'. The baby chicks featured in this video was likely an advertisement for the pedorists ring.
(d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims.
(e) Everybody with commonsense knows gay people have issues and are inclined to be pedophiles, but they call sane people 'homophobic' and don't give a damn if children are being hurt.
(f) Gay marriage is child abuse.
(2) The Respondent is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.
Mr Sunol's appeal against the above decision was dismissed: Sunol v Burns [2015] NSWCATAP 207.
While not identical the material the subject of the orders made in Burns v Sunol [2015] NSWCATAD 131, is broadly similar to the material we found to constitute unlawful homosexual vilification. For that reason we have decided there would be no utility in making a further order under s 108(2)(b) of the Act as it would in effect duplicate an existing order made by NCAT.
[36]
Apology
Mr Burns seeks an order that Mr Sunol issue him with an apology.
The efficacy of ordering an apology where a complaint of unlawful vilification is found to be substantiated has been the subject of extensive consideration by, the ADT (see for example, Sunol v Collier (EOD) [2006] NSWADTAP 51).
We have decided it is appropriate to order Mr Sunol to publicly acknowledge that he has contravened s 49ZT of the Act. We order:
Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:
This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT):
On various dates throughout 2014, I published statements on various websites concerning homosexuality and homosexual people.
NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably.
I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality.
John Sunol
We have decided no useful purpose would be served in requiring Mr Sunol to issue a personal apology to Mr Burns either in relation to the complaint of vilification and victimisation.
[37]
Orders
1. The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed.
2. The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated.
3. The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed.
4. The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed.
[38]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 April 2016